• by Wendy Davis , Staff Writer @wendyndavis, October 24, 2019

Facebook says it wants the Supreme Court to decide whether Illinois residents can proceed with a high-profile lawsuit claiming that the social networking platform's photo-tagging feature violates a biometric privacy law.

The 9th Circuit Court of Appeals recently rejected Facebook's efforts to get the case thrown out. The company is now asking that court to put the lawsuit on hold until the Supreme Court decides whether to intervene. 

“The Supreme Court should have the chance to weigh in ... before this multi-billion-dollar case goes to trial,” Facebook writes in a motion filed Thursday with the 9th Circuit Court of Appeals.

The battle dates to 2015, when Facebook was hit with a lawsuit alleging it violates the Illinois Biometric Privacy Information Act.

That law requires companies to obtain written releases from people before collecting “face geometry,” retinal scans, voiceprints and other biometric data. Companies that violate the law can be sued for up to $5,000 per violation.

The lawsuit centers on Facebook's photo-tagging function, which draws on a vast trove of photos to recognize users' faces and suggest their names when they appear in photos uploaded by their friends.

To accomplish this, Facebook allegedly analyzes the photos and creates a database of facial templates, without first notifying people or obtaining their consent.

Facebook has argued that the case should be tossed for numerous reasons. Among others, the company has said that the Illinois residents haven't shown how they were injured by the alleged privacy violation.

Facebook has also contended that the Illinois biometric privacy law doesn't apply to information derived from photos, or to activity that occurs in California, where the company is located.

Business groups including the Chamber of Commerce chimed in on Facebook's side, arguing that companies shouldn't be required to face privacy lawsuits unless those who are suing can show “real-world harm.”

For their part, the appellate judges who ruled against Facebook suggested that its use of facial recognition technology can have unexpected consequences.

“Once a face template of an individual is created, Facebook can use it to identify that individual in any of the other hundreds of millions of photos uploaded to Facebook each day, as well as determine when the individual was present at a specific location,” the appellate judges wrote. “Taking into account the future development of such technology ... it seems likely that a face-mapped individual could be identified from a surveillance photo taken on the streets or in an office building. Or a biometric face template could be used to unlock the face recognition lock on that individual’s cell phone.”

Facebook says in court papers that it will file a petition with the Supreme Court on an “expedited basis,” but didn't set out a precise time frame.

The company is predicting that the Supreme Court will decide by early next year whether to review the case.